The Land and Conveyancing Law Reform Act 2021 has come into force from 30th November2021. This is a short but valuable act which sorts out problems which would have arisen regarding rights of way and easements as a consequence of the Land and Conveyancing Law Reform Act 2009.
The Land and Conveyancing Law Reform Act 2009 had the effect of causing massive changes concerning rights of way from 1st December 2021. Easements include
- Rights of way
- Rights of support between adjoining buildings
- Rights to use pipes for water and sewerage which cross another person’s land
What does the new act do?
Claims for easements applied for prior to 30th November 2021 will continue to be dealt with as they would have before 30th November 2021.
Periods of long use before 2009 or between 2009 and 2021 will not be lost if no claim is made befor 30th November 2021. It was the case that such periods would have been lost as the effect of the Land and Conveyancing Law Reform Act 2009 was to reset the clock and begin counting from 1st decemerb 2021.
Doctrine of lost modern grant
New claims after 30th November 2021 will be decided by reference to the doctrine of lost modern grant.
The Doctrine of Lost Modern Grant is a legal fiction. It is a doctrine that presumes that a formal grant of a right, such as an easement, was made at some point after 1189 but had been lost.
It was the case that at common law a person had to show user of a right/easement since 1189. In practice courts will accept showing a period of 20 years of continuous use or user since living memory.
It is a doctrine that was developed by judges to overcome the ease with which a claim at common law could be defeated. It is used by claimants asserting a legal right to carry on activity enjoyed for years but for which there is no documentary title.
However, it will still be possible to claim a prescriptive right by applying to court or by registering it directly with the Property Registration Authority.
This is not mandatory to avoid losing any rights, it is an optional step that can be taken.
To reiterate: new claims after 30th November 2021 will be decided under judge-made law that applied before the 2009 act-that is, the doctrine of lost modern grant.